As you are likely aware, the Manitoba government has temporarily ordered the closure of “non-essential” Manitoba businesses, in light of COVID-19. Not all businesses must close, however, and even if your business is required to close, there are exceptions that allow limited operations for certain purposes. Those businesses that are deemed to be “essential” businesses, meanwhile, also have rules they must follow, in order to operate.

 

Do you have questions about these new rules and restrictions, and how they might affect your business? We’ve put this guide together, to help you understand how the operations of a business in Manitoba might be affected.

 

First, let’s look at the legal framework for these rules. Section 67 of The Public Health Act (the “Act”) provides Manitoba’s Chief Public Health Officer the ability to make Orders for special measures, in a public health emergency. On Saturday, November 21, 2020, sixteen (16) new Orders were issued under the Act in response to the COVID-19 pandemic (collectively, the “Order”), replacing all previous Orders given under the Act.

 

The Order restricts both the operations of non-essential businesses and the items that retail businesses can provide for in person sale.  A business listed in Schedule A of the Order is considered essential and can continue to operate while complying with additional requirements. A retail business may continue to operate with in person retail sales, but may only sell the essential goods listed in Schedule B of the Order on an in person basis. A business that is not listed in Schedule A is considered non-essential and must close to the public effective November 21 – December 11, 2020, with exceptions.

 

The Order is available here.

 

Please note that the Manitoba government has indicated the Order may be extended or otherwise modified, in the future.

 

  1. Is your business considered an essential business, retail business, or non-essential business?

a. Is your business considered an essential business?

 

If you would like to determine if your business is essential and able to remain open, you should review Schedule A to see if your business is listed as an essential business.

 

For example, if your business operates a pet store which supplies pet food and pet supplies, your business is considered an essential business, pursuant to Section 22 of Schedule A:

 

Agriculture, Food Production and Animal Care
22. A business that provides essential goods or services for the health and well-being of animals, including animal feed, pet food, and animal supplies such as bedding.

 

b. Is your business considered a retail business?

 

The Order defines a retail business as a business that sells goods for use or consumption by individual purchasers and includes a grocery store, pharmacy and hardware store.  If your business fits into the definition in the Order, it is considered a retail business.

 

c. Is your business considered a non-essential business?

 

If would like to determine if your business is non-essential and must close from November 21 – December 11, 2020, you should review Schedule A to see if your business is listed as an essential business.  If your business is not listed on Schedule A, your business is considered a non-essential business (but it may still be a retail business).

 

  1. Is your business able to stay open

 

a. If you are an essential business?

 

Yes.  However, there are additional requirements in the Order that you must follow if you are an essential business. More information about the obligations that apply to follows below.

 

b. If you are a retail business?

 

The answer to this depends on if your business is selling items listed on Schedule B of the Order (“essential items“).

 

If you are selling essential items

 

Yes, you are able to stay open to the public.  However, you may only sell essential items to members of the public who are shopping in person at the business.  In addition, if your business also sells items not listed on Schedule B (“non-essential items“), you must:

 

  • remove non-essential items from the areas of the business which members of the public have access;
  • ensure that members of the public are physically prevented from gaining access to the non-essential items; or
  • put up signs in the business or stickers on items clearly identifying non-essential items that cannot be purchased.

 

For example, if your business operates a retail store which sells winter jackets, your business is considered to be selling essential items, pursuant to Section 11 of Schedule B.

 

SCHEDULE B
Essential Items for Retail Sale

11. Winter jackets, snow pants, underwear, winter headwear, gloves and mitts, socks and winter boots.

 

If your business also sells items not listed under Schedule B, you must implement one of the three measures as listed above to ensure that members of the public cannot access or purchase those non-essential items.

 

There are additional requirements in the Order that you must follow if you are a retail business selling essential items. More information about the obligations that apply to follows below.

 

If you are not selling essential items

 

The Order does not specifically address this.  We know, however, that retail businesses may only sell essential items, which means that if your retail business does not sell essential items, there is nothing it can sell in person.  So, while the Order does not expressly say that a retail business that does not sell essential items must remain closed to the public, that seems to be the practical result. There are, however, exceptions to the closure requirements that are outlined in the Order, which may allow you to continue to operate in a more limited capacity.  More information about the exceptions that apply to follows below.

 

c. If you are a non-essential business?

 

No.  You will need to comply with the Order’s closure obligations. There are, however, exceptions to the closure requirements that are outlined in the Order, which may allow you to continue to operate in a more limited capacity. More information about the exceptions that apply to follows below.

 

  1. Additional Requirements

 

a. If you are an essential business

 

If your business is an essential business and is able to remain open, you must ensure that your business is compliant with the additional requirements that are outlined in the Order.  The additional requirements require you, as operator of the essential business, to put in place measures to ensure that appropriate physical distancing rules are followed.

 

Section 4(2) of the Order states that an essential business may remain open, however:

 

if the business allows members of the public to attend at the place of business, the operator of the business or facility must implement measures to ensure that members of the public attending the business or facility are reasonably able to maintain a separation of at least two metres from other members of the public.

 

Examples of implementation of the additional requirements in the Order can include: limiting the number of people in a place of business, relocating staff in a place of business, and/or visible space barriers (such as markings on the floor or plastic dividers) in a place of business.

 

In addition, Section 16(1) of the Order requires all persons entering or remaining in an indoor public place to wear a mask in a manner that covers their mouth, nose and chin without gapping.  The requirement to wear a mask does not apply to employees who are in an area which members of the public do not normally have access, or behind a non-permeable physical barrier.  Section 16(2) requires the operator of an indoor public place to ensure that every person who is not wearing a mask while in the indoor public place is given a reminder to do so as soon as practicable.  Examples of implementation of this requirement can include providing information to customers upon entry into the indoor public place, the implementation of a protocol to remind a person who is not wearing a mask to wear a mask, and/or visible signage stating masks are required.

 

b. If you are a retail business selling essential items

 

If your business is a retail business and is able to remain open for the purpose of selling essential items, you must ensure that your business is compliant with the additional requirements that are outlined in the Order.  The additional requirements require you, as the operator of the retail business, to put in place measures to ensure that appropriate physical distancing rules are followed.

 

Section 5(2) of the Order states that a retail business may remain open, however, the operator of a retail business must:

 

limit the number of members of the public at the business to 25% of the usual capacity of the premises or 250 persons, whichever is lower; and

implement measures to ensure that members of the public at the business are reasonably able to maintain a separation of at least two metres from other members of the public.

 

Examples of implementation of the additional requirements in the Order can include: limiting the number of people in a place of business, relocating staff in a place of business, and/or visible space barriers (such as markings on the floor or plastic dividers) in a place of business.

 

In addition, Section 16(1) of the Order requires all persons entering or remaining in an indoor public place to wear a mask in a manner that covers their mouth, nose and chin without gapping.  The requirement to wear a mask does not apply to employees who are in an area which members of the public do not normally have access, or behind a non-permeable physical barrier.  Section 16(2) requires the operator of an indoor public place to ensure that every person who is not wearing a mask while in the indoor public place is given a reminder to do so as soon as practicable.  Examples of implementation of this requirement can include providing information to customers upon entry into the indoor public place, the implementation of a protocol to remind a person who is not wearing a mask to wear a mask, and/or visible signage stating masks are required.

 

  1. Exceptions to the Order’s closure obligations

 

If your business is a non-essential business, it must close to the public from November 21 – December 11, 2020 (this date may be reviewed and extended, in the future). As discussed above, a retail business that does not sell essential items would also appear to be required to close to the public. However, there are exceptions to this closure requirement. The two (2) exceptions outlined in the Order include the ability of closed businesses to operate remotely, and temporary access to a closed non-essential business.

 

a. Operating Remotely

 

Sections 6(3) and 6(4) of the Order state that closed businesses are not prevented from operating online, by telephone or other remote means. This means that closed businesses may continue to operate:

 

  • to accept deliveries of goods and other supplies; and/or
  • if customers order or purchase goods online or over the phone, rather than making in-store orders or purchases.  In this case, the customer could arrange for pick-up of the purchased goods or they could be delivered by the closed business to the customer
    • if members of the public to attend the closed business to pick up goods, the operator must implement measures to ensure that members of the public attending are reasonably able to maintain a separation of at least two metres from other members of the public.

 

Staff may still work in-store to facilitate these remote activities. This will allow the closed businesses to receive and fulfill orders online or over the phone. Examples could include a restaurant that offers food for delivery or takeout, or a business that has employees preparing goods for sale and delivery, in a warehouse.

 

In all cases, the key is that customers are not coming on-premises to make purchases or orders, and that everyone on the premises observe physical distancing.

 

In addition, Section 16(1) of the Order requires all persons entering or remaining in an indoor public place to wear a mask in a manner that covers their mouth, nose and chin without gapping.  The requirement to wear a mask does not apply to employees who are in an area which members of the public do not normally have access, or behind a non-permeable physical barrier.  Section 16(2) requires the operator of an indoor public place ensure that every person who is not wearing a mask while in the indoor public place is given a reminder to do so as soon as practicable.  This would apply to a customer entering an indoor public place to pick up goods.   Examples of implementation of this requirement can include providing information to customers upon entry into the indoor public place, the implementation of a protocol to remind a person who is not wearing a mask to wear a mask, and/or visible signage stating masks are required.

 

b. Temporary Access

 

A closed business can be accessed temporarily. Section 6(2) of the Order states that temporary access to a closed business is authorized (unless otherwise prohibited by an applicable law) for the following purposes:

 

  • performing work at the place of business in order to comply with any applicable law;
  • allowing for inspections, maintenance and repairs to be carried out at the place of business or facility;
  • allowing for security services to be provided at the place of business or facility; or
  • attending the business or facility to deal with critical matters relating to its closure.

 

Examples of situations where temporary access to a closed business is allowed could include where someone is physically present at the business to perform repairs, provide security services, and/or deal with matters relating to the close of the business that cannot be done remotely.

 

  1. Legal Information and Considerations for Your Business

 

This is general information only, rather than legal advice. To determine if your business is an essential business, retail business, or non-essential business, and what additional requirements or exceptions apply to the operation of your business, the specific circumstances surrounding your business will need to be considered.

 

You should continuously monitor all federal and provincial announcements as well as the implementation of respective orders, as the law surrounding the COVID-19 pandemic is evolving on a daily basis. Based on the measures taken in other jurisdictions, we anticipate there may be ongoing refinements to list of essential and non-essential businesses and their operational abilities.

 

We recommend that you seek assistance from legal counsel where appropriate. Please do not hesitate to contact us if you require assistance with:

 

  • Determining if all or a portion of your business is considered an essential business;
  • Deciding how your business should operate in these circumstances; and/or
  • Implementing processes and protocols to ensure compliance with the law.

 

Please do not hesitate to contact your relationship partner or lawyer if you have any questions or if we can be of assistance in guiding you through these new challenges.

 

This article was prepared by:

 

ANDREW J.D. BUCK
PARTNER
204.956.3569
buck@pitblado.com

 

ELIZABETH CZYRNYJ
LAWYER
204.956.3548
czyrnyj@pitblado.com

 

MATTHEW KNOLL
ARTICLING STUDENT-AT-LAW
204.956.0651 ext. 281
knoll@pitblado.com

 

This article represents general information and is not legal advice. Please contact us if you would like legal advice that is tailored to your particular circumstances. We would be happy to help.